Yesterday, I gave a presentation to a roomful of medical records adminstrators at a conference put on by Lorman.  The topic was Medical Records Law in New York, and I spoke about handling requests for records, via HIPAA-compliant authorizations, subpoenas, and otherwise.

As I prepared for my talk, I thought back to the barely fathomable amounts of time and money that are wasted on the simplest of tasks:  obtaining medical records in the lawsuit context.  Here are the highlights of my rant on the topic:

The Costs of Not Providing a Timely Response When Records Are Requested.

 Know what really created the “medical malpractice crisis” in this country?

 Doctors’ failure to turn over records when asked!

Watch how this works….

 A plaintff’s lawyer requests records.  Many of you, and the doctors you work with, cringe.  You think…”They’re suing a Dr.???  They can wait!”

 And so it takes 10 “reminder” letters to your office before the records are sent.  Never mind that the sooner the plaintiff’s lawyer gets the records, the sooner he becomes fully educated about the merits of his case, not least because his experts get to review them sooner.  This may cause him to discontinue against the doctor.  It may also bring about an early & reasonable settlement demand.

 This, in turn, may mean less litigation costs for the insurance company, and less heartache for the doctor. 

But the truth is, requesting records when you’re defending these cases does not improve your chances of a timely response.  I know. I’ve been there.

It would take me, when I defended medical malpractice cases,  up to 10 letters also.  Know how much each of those “reminder” letters cost?  Think of it this way.

A defense lawyer bills the doctor’s medical malpractice insurance company  for every task he/she does, usually in increments of 6 minutes.

 The more time they bill for a given task, the happier their managing partner becomes. 

The defense lawyer managing the case on a day-to-day basis has to mark his calendar, every month:  “Check on Dr. Smith’s records.”

 He’ll have to go to the file room, find the file, bring it to his office, locate the medical records section, go through it carefully, making sure, for instance, that Dr. Smith’s records did not come to the file under a different name, say, that of his PC, South Shore Spinal Surgeons.

 He’ll see it hasn’t come in, so now, he has to write a letter, and make a phone call to your office.  And, he’ll diary it again for 4 weeks later to see if the 30 minutes worth of time he just charged the insurance company has paid off.  That’s about $100 at many firms.

 Now, imagine that the same defense lawyer has 15-20 other medical providers that he needs records from, on the very same case.  It’s the same time-sucking, bill-generating process.

And, it just drags things out. How?

 The first big event in the litigation of the case—plaintiff’s deposition—can’t go forward.  Why?   Under most circumstances, the plaintiff, like any other witness, is presented ONCE for deposition.  No competent defense attorney is going to want to attend plaintiff’s deposition without knowing everything possible about plaintiff’s past medical history, the care at issue in the case, and the care plaintiff needs now as a result of the alleged negligence.

And of course, dragging out the litigation means more day-to-day litigation expenses for the insurance company bankrolling all of this.

And now, back to today’s post…

And so, here is what I recommend to the medical liability insurance companies.  Penalize those of your insureds who fail to provide timely responses to requests for medical records.  Make it a condition of coverage that the healthcare provider sends out a response the FIRST time he/she/it receives a properly formed request.  If that’s too harsh, impose financial penalties on the providers for each instance of ignoring a legitimate records request.  Don’t rely only on the billing records you get from the partners at the defense law firms.  Actually go to the firms periodically, and leaf through the correspondence files to see how many times the same letter has been written.   Actions such as these will go a long way toward cutting the costs of medical malpractice litigation.

ShareThis

You know, doctors don’t like to admit it, but even they turn to us trial lawyers now and then, as they have this week in California.  The reason? The Governator, a/k/a Arnold Schwarzenegger, exempted state hospitals from the requirement that an anesthesiologist be present when a nurse anesthetist administers anesthesia to a patient, without consulting the state’s medical board and board of nursing.  Pursuant to Medicare rules, he was requirerd to do so.

California’s medical societies have spun this as a patient safety issue, i.e., the supervision of an actual doctor prevents mistakes and injuries, and can better correct them if and when they occur.  But it is hard to ignore the fact that if doctors must be present in every case in which a trained, certified nurse anesthetist administers anesthesia, those doctors are going to make more money.

So who did the doctors call when they felt that their rights were being stomped on?  That’s right. Trial lawyers.  With their help, they have filed suit against Gov. Schwarzenegger.  Which is a little odd, since most of the time, when doctors or their medical societies use “trial lawyer” in a sentence, it is coupled with words like “greedy,” “evil,”  “opportunisitic,” and the like.

Of course, the reality is that trial lawyers may have saved your life, particularly if you were lusting after that cute little Ford Pinto some years back.  And even now, if you think Toyota is taking the action it is with regard to accelerator pedals on its own, you are probably in another galaxy.  It was trial lawyers, and the legitimate threat of lawsuits that would cost the company big money that was the ultimate motivator.

Perhaps if people had a natural tendency to take action to right wrongs they become aware of, we would not need us trial lawyers.  But history teaches us otherwise.  In yesterday’s NY Times, we learned some good news: that radiologists were finally taking the dangers of radiation therapy seriously by forming a safety task force and a central data base of errors that harmed patients.  But the disappointing news was this.  Such a step would never have been taken if the NY Times had not written two recent articles on the dangers of such therapy, and the lack of any safety systems that might help regulate such treatment.  You don’t think the radiologists envisioned a law suit or two, do you?

ShareThis

There’s been a lot of public hand wringing by the GOP’s best spin doctors about those “runaway medical malpractice verdicts,” and their deleterious effects on the cost of healthcare, all done in the name of limiting victims’ rights to fair compensation, and helping doctors and hospitals avoid accountability for their errors.

In GOP World, the answer to the problem of “jackpot justice” –surely you’ve seen all those severely injured plaintiffs who have won law suits riding around in specially-outfitted Rolls Royces–is to impose caps on medical malpractice awards given by juries.  This would inject some much needed common sense into our broken jury trial system, and let doctors get back to the business of helping people, so the rhetoric goes.

And if you are not a lawyer, you might have given a second thought to such histrionics.  But if you are a lawyer, and particularly a New York State lawyer, you know that the tort “reformers” have neglected to fill the rest of the public in on a little secret.  Are you ready for it?  Good.  There is already an effective tool in place in our court system that limits outrageous jury awards, and it works both ways:  lowering the award when it is exessive; and increasing it when it is too paltry.  That tool is actually twofold.  It consists of the common sense of our appellate judiciary, as well as precedents set with regard to the exact issue of compensation.

After any verdict in New York State, any party can move for a reduction, or an increase in the amount of the verdict, based on what is reasonable compensation under all the circumstances.  In Ross v. Mandeville , 45 A.D.3d 755 (2d Dept. 2007), an OB/GYN allowed a medical student to make the incision enabling a C-section to be performed. The student ended up lacerating the forehead of the as-yet-undelivered baby, causing minimal, but permanent scarring.  When the trial jury awarded $200,000 for the infant’s past pain and suffering, and $350,000 for future pain and suffering, the defense moved to set aside the verdict as excessive.  The Appellate Division agreed with the defendant, and reduced past pain and suffering to $45,000, and future pain and suffering to $80,000.  It found that the initial damages deviated from “reasonable compensation.”  And they did so by looking to comparative values–that is, what other courts had awarded under similar circumstances.

So much for “runaway verdicts.” And so much for the urgent call for caps on medical malpractice damages, at least here in New York.

ShareThis

The dangers of texting combined with driving was driven home to me again yesterday morning, literally.  A cab blew a red light and smashed into the rear of my car in Manhattan, and I’d bet a lot of money that the driver was on the phone, as so many cab drivers are while on duty. (You’ve had the experience: sitting down in the back seat, hearing the cabbie’s voice, thinking he’s saying something to you, only to realize he’s on the phone.)  So much for the new law prohibiting hand-held cell phone use while driving.  Clearly, whether a driver is using “hands free” technology or not, it is the act of being involved in a phone conversation that causes the distraction.  But you don’t have to be driving a car to be distracted.

Back in September of last year, some friends and colleagues thought I had gone too far by addressing what I perceived to be the dangers of texting and walking.  But guess what?  I have been vindicated!

An article that has garnered lots of buzz in this weekend’s New York Times is chock full of examples of people, particularly young people, walking into (or falling onto) things while using cell phones.  If they are lucky, they are only embarrassed.  But some have injured themselves, too. And in one of the more disturbing findings, people using their cell phones while walking often failed to notice a clown riding a unicycle, right in front of their noses.

While I’m heartened to see the dangers to these pedestrian cell phone users taken seriously, I’m disappointed that the article failed to address the obvious related problem:  injuries to others as a result of distracted walkers.  That’s happening too.  You’ll see.  One day, there’ll be an article about it….

ShareThis

I don’t have to remind you that it’s not nice to have sex with your partner while experiencing a flare up of your genital herpes–especially when you stay silent on the subject in the darkness of your love romp.

But for any of you that fail to abide by such niceties, there is now case law from the Appellate Division, First Dept., that may persuade you to change your ways.  In Felter v. Feigenbaum, NY Slip Op 00012 (1st Dept. 2010), plaintiff sued defendant for negligent transmittal of genital herpes simplex II.  Following discovery-related motion practice, the First Dept. held that defendant must submit to a blood test that would be determinative of whether or not he has the virus. 

Though defendant attempted to evade the test by claiming that undergoing it, and delivering the results to plaintiff, would violate the physician-patient privilege, the Court dismissed such reasoning out of hand, since the test “was ordered in conjunction with the litigation.”

Moreover, the Court noted that even if the privilege were to apply, defendant waived it when he asserted the affirmative defense that he was asymptomatic.

But you didn’t need this decision to get you to do the right thing, right?

ShareThis

From Colorado, and particularly the Durango Herald, we get to see firsthand one of the truly significant problems with tort “reform.”  Its supporters are not intelligent.  The dead giveaway comes when the writer expresses his outrage that doctors are now forced to practice defensive medicine, when they should be practicing “offensive” medicine.

Well, you see, that “offensive” medicine is exactly what too many doctors have been practicing for too many years, which is why tort “reform,” which shields doctors and hospitals from accountability for their offenses to patients, is not a wise idea.  It is “offensive” when a surgeon operates at the wrong site because he was too busy to perform a preoperative time out to verify the spot with the surgical team.  It is “offensive” when that misstep seriously injures or kills the same patient. And it is especially “offensive” when tort “reform” imposes arbitrary limits on the amount of awards to such victims of medical malpractice at trial, often preventing realistic compensation, and always robbing the jury of its power and right to assess each case on its own merits, and act accordingly.

Meanwhile, hospitals continue to value profit over patient welfare, and act–or fail to act–accordingly.  The Pop Tort has a heartbreaking round up of stories on the failure of New Orleans-area hospitals to outfit their facilities properly with generators in anticipation of flooding.  Along came Katrina, and patients on life-support died slow, agonizing deaths when the power failed, and could not be replicated by other sources.  Offensive?  As one of the least intelligent of the tort “reformers” likes to say, “You betcha!!

ShareThis